Yemen: The “Administrative Court” demands PM to cure pro-change protesters
Sana’a—“The Administrative Court of First Instance” of Sana’a notified Prime Minister to implement its verdict number 70-2012, on wounded pro-change protesters.
The verdict, which issued by the Court in a session held on 14th November, demanded the Government of reconciliation to provide health care to the wounded and treat them abroad upon each injury nature reported by medical reports. “The Government be committed to pay 440 Y.R as litigation fees”, it also said.
Ministry of Justice
Administrative Court of First Instance
Al-Amana
Executive case number (1) for the year 1434 H.
Announcement of the judgment implementation number (20) for the year 1433 H
The complainant: Basam Yassen Abdu Al-Akhaly and the interveners in the case.
Defendant: The Reconciliation Government
Sir Prime Minister
According to what have been mentioned above, a copy of the issued judgments number (70), 2012 is submitted to you. The judgment confirms the following:
1. Accept the lawsuit of the complainants and the interveners.
2. The defendant is obligated to implement the Presidential directive number (8), 2012, clause (c) in regard with the victims of the peaceful protests of the year 2011. It is also abide to provide them with the required medical treatment and treat them abroad at the expense of the government, each in accordance with the seriousness of his injuries and the medical reports delivered on his case from the specialized centers according to what have been mentioned in the preambles.
3. The defendant is obligated to pay 440000 (forty four hundred thousand) Yemeni rials for the benefit of the complainants and those who requested to be involved in the lawsuit as a compensation.
According to the article (243) of the Procedural Law regarding the urgent lawsuits, the court is abide to implement the issued judgment without any delays.
Thus:
The court provides you with a copy of the judgment and requires implementation in accordance with Law, unless the court will apply legal procedures to implement the judgment pursuant to the articles (334, 336, 487, 489) of the Procedural Law.
Issued on 20/11/2012
The Judgment
In publicly session presented in the Administrative Court, Al-Amana, on 14/11/2012.
Headed by Aministrative Judge: Raghda Abdul-Rahman Abdulwahed
And
Secretary: Samah Qaed Al-Hamdany
The judgment number (70) for the year 1433 H. is issued in the administrative case number (160) for the year 1433 H.
The complainants: Address Profession
1. Bassam Yassen Abdu Othman Al-Akhaly
2. Abdullah Al-Ezy Fazei Ali
3. Mohammed Abdullah Saeed Saif
4. Khaled Ahmed Saleh Daisham Al-Yarimy
5. Adel Saif Ali Al-Amary
6. Essa Abdullah Ahmed Al-Sofy
7. Mohammed Hameed Ali Al-Qubaty
The Interveners:
1. Yosef Mohammed Ali Al-Fasheq
2. Samer Abduljabar Ghaleb Al-Selwy
3. Abdullah Mohsen Mohammed Al-Qubaity
4. Hamdi Radman Mohammed Al-Qubaty
The defendant:
The Reconciliation Government Sana'a governmental body
The facts of the case:
The following mentioned complainants have been recommended by doctors to travel abroad for getting necessary medical treatments:
1. The first complainant injured on 18/2/2011 with a gunshot during the Revolution in Sana'a, Al-Tagheer square, resulted in the smash of spinal root appendages with a crack in the third dorsal vertebrae led to the hemiplegia in his lower lambs.
2. The second complainant wounded on 18/2/2011 by a bomb shrapnel in the left leg during his participation in the peaceful sit-in in Al-Horia square in Taiz during the Revolution as well. He was also exposed to another injury, in Naqeel Yasleh on 24/12/2011 while he was participating in Al-Haiah March, led to smash the bones of the left leg.
3. The third complainant attacked by Security Forces in Al-Horia square on 26/5/2001. He injured with a gunshot in his left knee resulted in the injury of severe crash with corrosion in the lateral condoyle, rupture in the external ligaments and the knee femoral artery.
4. The fourth complainant injured by shrapnel in his skull during his participation in the student demonstration that was organized by Arhab University. His injury caused him hemiplegia.
5. On 28/6/2011, the fifth complainant suffered a gunshot wound by a gun machine caliber 12/7 pierced his left arm in his participation in the peaceful demonstration in Taiz concluded to paralysis.
6. On 24/7/2011, the sixth complainant hit by three gunshots in his right leg during his sitting in Al-Horia square. This injury led to fractures and fragmentation of the bone and nerves laceration.
7. The seventh complainant received two bullets in his back in the peaceful demonstration taken place on 19/9/2011 in Kintaki roundabout.
8. The eighth complainant injured on 30/5/2011 in Al-Horia square by a shrapnel in his perineum resulted in cutting nerve plexus and disabling the male function.
9. On 11/5/2011, the ninth wounded injured with a gunshot in his left leg in his participation in Atagheer square in Sana'a. this injury resulted in bad narrowing at the back of the urethra with the presence of multiple tightening in the anterior part of the urethra
10. On 3/7/2011 the tenth complainant injured by two gunshots in his left leg and the pelvis concluded to a fracture in left side of the pelvis which caused a serious injury of the left foot with interior wounds in the pelvis and the stomach.
11. On 24/12/2011, the eleventh complainant was exposed to battery in Al-haiah March resulted in harniated disc in his spine.
On 23/11/2011 most of the Yemeni political parties signed on the GCC Initiative in Riyadh . According to the clause (13), sections A and B all the political parties are obligated to implement the directives of Security Council number (2014) for the year 2011 regarding Yemen, which strongly condemn, in clause (2), the intensively use of power against the protestors.
On 17/3/2012, the President issued the republican decree number (8) for the year 2012, concerning the victims of the peaceful protests 2011, pursuant to its article (1), clause C the government has to provide the wounded protests with medical care and treat them abroad each according to the seriousness of his injury.
On 3/10/2010, the complainants made a formal request to the Reconciliation Government demanding quick directions with regard to treat them abroad at the expense of the government. But the latter delayed in implementing the demands, despite the danger that the complainants face.
Therefore, the case based on the following reasons:
Concerning the earlier mentioned facts which are supported by medical reports delivered by the Al-tagheer square field hospital and other hospitals, it is evident that the complainants were exposed to dangerous injuries during their participation in the peaceful revolution. As a result they are in urgent need to the medical treatment abroad at the expense of the government in accordance to the presidential detective number (8) for the year 2012.
It is legally determined that the Summary Jurisdiction becomes a necessity in such cases since the complainants face imminent danger that might causes them serious damage. So the complainants are in need of urgent protection, which might not be fulfilled by following the ordinary legal procedures.
According to the article (238) of Procedural Law every judge has to pass his judgments in the urgent cases before it is too late to avoid expected damage. Therefore the government is obligated to treat the complainants avoiding any damage might affect their psychological and physical states since they are exposed to death because of their serious injuries and negligence . Leaving them without medical care might result in their injured organs atrophy reducing their chance in recovery. Therefore, the procedure is corresponding to the Law and fulfilled the conditions of acceptance since the Summary Jurisdiction does not deal with the original right or conflict cause, but rather explores the conflict between the lawsuit parties according to the documents available trying to find out the right decision from the first time pursuant to the articles (238) and (75) of the Procedural Law. It means that any possible benefit is enough to accept the lawsuit .
Moreover, the administration is the responsible to implement the issued directives for the benefit of the individuals and it might be accused of service defect if it does not do so as it is in the present case. The defendant endeavours not to implement the Presidential directive exploiting its power. This delay from the government is considered to be an administrative conflict regarding a negative administrative procedure. The administrative authority is a legal authority. Thus the administration has no right to use it as an instrument to infringe the Law and deviate from the real purpose that it is authorized to by law. Counsels of the Administrative Law confirm that it is a great fault to misuse the authority by infringing the public interest in implementing the procedures. Such behavior is considered to be a deliberately legal infringement.
At the end they concluded to the following demands:
1. Accept the lawsuit in form and content.
2. The defendant is obligated to provide the medical care for the complainants as soon as possible. And treat them in specialized centers abroad at the expense of the government according to their injuries seriousness and the medical reports.
3. The complainants have the right to present a substantive lawsuit in this court to force the government to approve a soldier salary for the benefit of crippled complainants and included them in the Social Welfare Fund pursuant to the article (1) clause A of the republican decree number (8) for the year 2012 concerning the wounded protestors of the revolution.
The trail procedures:
The court, headed by the administrative judge Raghda Abdulrahman Abdulwahed Al-Qady and the presence of the secretary Samah Qaed Al-Hamadani, held four sessions to discuss the case .Ahmed Saif Hashed Hashem attended the first session held on 5/11/2011. He is a parliament member (membership card issued on 10/5/2011) and the representative of the following complainants.
1. Mohammed Abdullah Saeed Saif by virtue of the attorneyship number 668 from Abdulkhaleq Abdullah Qasem Al-Hasbar issued by Almafer Court of the First Instance on 8/10/2012, which had been compared to the original copy.
2. Bassam Yassen Abdu Othman by virtue of the attorneyship number 1080 issued by North Al-Amana Court on 3/11/2012, which had been compared to the original copy.
3. Essa Abdullah Ahmed Mohammed Al-Sofy, Abdullah Al-Ezy Fazei Ali, Khaled Ahmed Saleh Daisham and Adel Saif Ali Alamary by virtue of the attorneyship number 1938 issued by West Al-Amana Court on 1/10/2012, which had been compared to the original copy.
The seventh complainant Mohammed Hameed Ali Al-Qubaty also attended the session and had been introduced to the court by Arwa Ahmed Awn Almdhajy, holding identity card number 00100028521 issued by the Main Center on 3/4/2011, and Abdulrazaq Nasser Mohammed Al-Aghbary holding identity card number 00110005250 issued by the Main Center on 1/4/2001. Al-Qubaty retained the attended lawyers and fingerprinted on that.
Yusef Mohammed Ali Al-Fasheq holding identity card number 01010035745, issued from Al-Amana Center (1) on 31/5/2005,and passport number 04902301 issued from Sana'a on 29/9/2012 ,attended and retained the lawyers and fingerprinted on that .
Abdullah Mohsen Mohammed Al-Qubaity introduced by Abdullrazaq Nasser Mohammed Al-Aghbary holding identity card number 00110005250, issued on 1/4/2001, attended and retained the lawyers and fingerprinted on that.
Samer Abduljabar Ghaleb Al-Selwy introduced by Ayoob Mohammed Moqbel Saleh holding identity card number 732623, issued from Al-Amana on 14/7/2002 attended and retained the lawyers and fingerprinted on that.
Jozail Abdulrahman Mohammed Al-Maqramy holding identity card number 515783, issued from Al-Amana on 21/8/2000 attended and retained the lawyers and fingerprinted on that.
Abdulkareem Hael Saeed Salam holding passport number 03555703, issued from Sana'a on 23/6/2009 attended and retained the lawyers and fingerprinted on that.
The lawyers; Dr. Mohammed Abdullah Noman, Najeeb Sharaf Abdullah Hezam, Ala'a Ebraheem Al-Shareef Mohammed Al-Refei, Rabei Adnan Abdullah Othman Noman, Abdulmajeed Mohammed Yehia Salah, Hani Mansour Derhem Ahmed, Mohammed Saeed Ali Abdullah and Nabeel Salam Al-Selwy, were retained by Ahmed Saif Hashed to present the lawsuit in the court on behalf of the complainants, and he fingerprinted on that.
The lawyers required correcting the typewriting mistakes appeared in the writ of summons regarding the names of the complainants Abdullah Farei Ali Al-Absy, which is corrected to Abdullah Al-Ezy Fazei Ali, and Adel Ali Saif Al-Amary which is corrected into Adel Saif Ali Al-Amary.
A declaration was submitted to the defendant by Wael Alhamady, the court employer. But the former refused to receive it. As a result the court decided to inform the government through the Ministry of Legal Affairs and adjourned the session to be held on 11/11/2012.
The session was held and headed by the former panel on the defined appointment. The complainants lawyers; Dr. Mohammed Abdullah Noman, Najeeb Sharaf Al-Haj, Hani Mansour Al-Selwy, Abdulfatah Ghanem, Mohammed Saeed Al-Shawafy, Rabei Adnan and Nabeel Salam Al-Selwy, attended the session. Hamdi Radman Mohammed holding passport number 04801732, Almana, 1/7/2012, joined the complainants and retained their lawyers and fingerprinted on that.
The complainants lawyers presented a brief containing the names of the new interveners to the case; Yosef Mohammed Ali Al-Fasheq, Samer Abduljabar Ghaleb Alselwy, Abdullah Mohsen Al-Qtaiby and Hamdi Othman Mohammed Al-Qubaty, consisting two sheets and documents file involving two sheets with five copies of the documents. In the session, the complainants lawyers presented a copy of the notification signed by Arwa Alasbahy that the original copy was received on 5/11/2012. Thus the court decided to appoint the lawyer Mohammed Abdullah Al-Saiany for pleading in favor of the Council of Ministries. In the session the lawsuit was presented before the appointed lawyer who requested a copy of the case file to rebut and he received one from the complainants lawyers.
The court then decided giving the appointed lawyer the chance to rebut and the lawsuit was adjourned to the next session on 12/11/2012. On the appointed day the session was held. The complainants lawyers; Najeeb Sharaf, Hani Al-Selwy, Mohammed Al-Shawafy and Nabeel Al-Selwy, and the appointed lawyer, Mohammed Al-Saiany, attended the session.
Al-Saiany notified that complying to the procedures there are formal affairs that must be fulfilled to be able to rebut the lawsuit.
First, the lawsuit is produced by seven complainants, pleaded by twelve lawyers and signed by only four of them without knowing how they were appointed to represent the court. In addition the appointment of Ahmed Saif Hashed as the representative of the complainants is not acceptable according to the article 117 and 125 since he is a judge himself.
On the other hand the lawsuit is presented summarily without giving reasons and details about cases called urgent to be able to rebut and for the court to be able to take the right decision. Therefore Al-Saiany requested the court to force the complainants lawyers to refine and complete the lawsuit file. Hence the unfulfilled conditions lawsuit cannot be rebut.
The complainants lawyers informed the appointed lawyer that most of the complainants and the interveners retained Ahmed Saif Hashed who retained the lawyers to present the lawsuit in the court. Such attitude is a procedural not a legal action that requires a legal attorney to the lawyers since the procedural action is presented by any person.
Moreover, if the respectable court panel study the lawsuit file they will find that the lawsuit is limited to impose urgent protection for the complainants through forcing the government to provide medical care to the complainants and treat them abroad according to the reports issued by the Ministry of Health and pursuant to the article (1) clause D of the republican decree number (8).
The court therefore is requested to give its decision as soon as possible since the lawsuit fulfilled all the conditions of the urgent lawsuit to avoid dangerous consequences that might affect the complainants lives as their conditions get worst and may be uncontrolled in the future because of the government negligence to their conditions and its carelessness in fulfilling its duties towards the complainants. The fact that requires urgent action from the court to impose an urgent protection for them since many of their friends died because of negligence.
Consequently, we request the court to support the complainants and pass a judgment in favor of them to fulfill their demands particularly after the appointed lawyer had rejected and denied the lawsuit declaring that it does not fulfill the conditions of being urgent.
We clarified that the complainants retained Ahmed Saif Hashed who retained the lawyers, mentioned their names in the first session minute, then the complainants retained the lawyers themselves in that session. On concern with the lawsuit being summary, that is related to the subject of the lawsuit and the court has to pass its judgment and force the appointed lawyer to rebut the lawsuit.
The appointed lawyer rebutted orally stating that the lawsuit should not be plead against the government even if there is a republican decree forcing the government to provide the medical care to the complainants since it is known that the medical care is a citizenship right and it does not need any republican decree to be fulfilled. In addition, there are specialized official institutions for that purpose. So in such cases the patients must be expose to a special medical committee to decide if the cases need medical treatment abroad or not. Therefore there is no convinced reason to present this lawsuit against the government which is a diplomatic body that has a general political role and does not concern on individual cases. In general, this is a substantive lawsuit not an urgent one as the complainants healthy cases are stable.
The complainants lawyers commented on the appointed lawyer defense confirming that the republican decree is clear regarding the obligation on the government to provide the medical treatment for the benefit of the complainants. However the government adopted a negative position and did not fulfill her duties towards the complainants. In regard with the medical reports, the documents involved in the lawsuit file which are delivered by the Ministry of Health, are enough for the court to pass a judgment since the judge, in such summary cases, is on concern with the available documents to pass a judgment.
In consequence of that, we request the court not to relay on the appointed lawyer defense and adjudicate in favor of the complainants as soon as it possible. Hence the court panel closed the pleading file postponing the case for final judgment and adjourned the session to be held on 14/11/2012.
On the appointed day, the court held the session. The complainants lawyers; Dr. Mohammed Abdullah Noman, Najeeb Sharaf Al-Haj, Hani Al-Selwy, Ala'a Al-Refaei and Helal Al-Sofy, attended the session while the appointed lawyer did not do so. Therefore, the court appointed Dr. Abdulrazaq Nasser Al-Aghbary instead of Al-Saiany for the hearing. Then the court gave its judgment which is as follow:
The judgment reasons, preambles and the final adjudging:
After listening to the pleading and studying the lawsuit file, it becomes evident to the court that the complainants; Basam Yaseen Abdu Othman Al-Akhaly, Bassam Abdullah Al-Ezi Fazei Ali, Mohammed Abdullah Saif Saeed, Khaled Ahmed Saleh Daisham Al-Yarimy, Adel Saif Ali Al-Amary, Esa Abdullah Ahmed Al-Sofy and Mohammed Hameed Ali Al-Qubaty, presented a summary lawsuit against the government represented by the Council of Ministries, in general, and Mr. Mohammed Salem Ba-Sendwa (the Prime Minister), in particular demanding the government to provide the medical care for the complainants and treat them abroad in specialized centers at the expense of the government according to the republican decree number (8) for the year 2012, and regarding the medical reports involved in the lawsuit file.
The interveners to the case; Yosef Mohammed Ali Al-Fasheq, Samer Abdul-Jabar Ghaleb Al-Selwy, Abdullah Mohsen Al-Qutaiby and Hamdi Radman Mohammed Al-Qubaty, requested to be involved in the summary case presented by the above mentioned complainants supporting their demands.
The court followed all the legal procedures in regard with informing the government which refused to receive the declaration. The court, therefore, informed the defendant through the Ministry of Legal Affairs as it is the legal representative of it, but no one represent the defendant. As a result, the court appointed lawyer Mohammed Al-Saiany as the defendant lawyer. The appointed lawyer orally stated that the government is diplomatic body which decide the political affairs of the country and has nothing to do in such individual cases. He added that the patients must be exposed to a medical committee to decide which has to be treated abroad and that the case is a substantive case not an urgent case since the healthy conditions of the patients are stable.
According to the article 238 of the Procedural Law that defined the summary judgment as a temporary judgment or action issued in urgent cases before it is too late. Consequently, the summary jurisdiction provides an urgent protection to avoid being too late. Therefore, we are before an administrative conflict regarding a negative administrative direction represented by the government position in not implementing a Presidential directive, the fact that might lead to uncontrolled consequences.
According to the official reports issued by governmental hospitals and medical centers concerning the serious medical states of the complainants and their need of special medical care, taking into consideration the two briefs submitted by the Ministry of Health number 4/3(67) and 4/3(124) on 2/8/2012 on concern of the request of some of the wounded revolutionaries to be treated abroad, it is logically known that the delay in giving the medical treatment might cause serious threat on the patient health or death.
In consequence of all these facts, this case is an urgent case which needs a temporary procedure to avoid real danger that may negatively affect the complainants lives. According to law especially the articles (17,70,71,75,200,202,203,238,241,245,257,258) of the Procedural Law and civic implementation number 40 for the year 2002, the amendment of the law number 2 for the year 2010, and Supreme Judicial Council directive number 177 for the year 2010 regarding establishing the Administrative Court, the court, in Al-Amana, pass its judgment as follow:
Firstly, accept the lawsuit of the complainants and the interveners.
Secondly, the defendant (the government) is abided to implement the Presidential directive number (8), clause C for the year 2012 concerning the victims of the peaceful protests of the year 2011 in regard with providing the medical care to the wounded protestors and treat them abroad each according to the seriousness of his medical case at the expense of the government.
Thirdly, the defendant is obligated to pay forty four hundred thousand Yemeni rials for the benefit of the complainants and the interveners as compensation.
Issued by the Administrative Court of First Instance, Al-Amana, Wednesday 14/11/2012.
The Aministrative Judge: Raghda Abdul-Rahman Abdulwahed
Secretary: Samah Qaed Al-Hamdany
